People v. Vazquez CA3

Filed 2/24/22 P. v. Vazquez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Tehama) ----

THE PEOPLE, C093644

Plaintiff and Respondent, (Super. Ct. No. 19CR002194)

v.

OSCAR AVILA VAZQUEZ,

Defendant and Appellant.

Appointed counsel for defendant Oscar Avila Vazquez filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We requested supplemental briefing on: (1) the applicability of Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), Assembly Bill No. 124 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 695, § 5), and Assembly Bill No. 1540 (2021- 2022 Reg. Sess.) (Stats. 2021, ch. 719, § 2) to this case; and (2) “[t]he inconsistencies between the advisements in defendant’s plea form that say his custody credits will not exceed 20 percent, when defendant, by virtue of his conviction for a violation of Penal

1

Code section 288, is actually subject to a 15 percent limit (Pen. Code, §§ 667.5, 2933.1),[1] consistent with the court’s custody credit award.” Having reviewed the supplemental briefing and the record as required by Wende, we will remand for the limited purpose of allowing the court to select a sentence in light of the changes brought about by Senate Bill No. 567.2 The judgment is otherwise affirmed. FACTUAL AND PROCEDURAL BACKGROUND Defendant pleaded guilty to a lewd act on a child under the age of 14 (§ 288, subd. (a)), and in exchange two counts of sodomy on a child under the age of 10 (§ 288.7, subd. (a)) and two counts of sodomy by force on a child under the age of 14 (§ 286, subd. (c)(2)(B)) were dismissed. The stipulated factual basis for defendant’s plea was Corning Police Department’s report No. 19-1083. The court accepted his plea and referred the matter for preparation of a probation report and a section 288.1 examination. On December 14, 2020, the court denied defendant’s request for probation and sentenced him to the upper term of eight years in prison with 494 actual days plus 74 conduct days for a total of 568 days of custody credit. The court also incorporated the fines and fees as set forth in the probation report. These were a $1,800 restitution fine (§ 1202.4, subd. (b)), a $1,800 suspended parole revocation restitution fine (§ 1202.45), a $40 court operations fee (§ 1465.8), a $30 criminal conviction fee (Gov. Code, § 70373), and a $1,080 sex offender fee (§ 290.3) inclusive of penalty assessments. Defendant timely appealed and received a certificate of probable cause “to have appellate counsel review the case for any possible issues on appeal including the validity of the plea.”